Case 1:24-cv-00376-MN Document 29 Filed 11/05/24 Page 1 of 3 PageID #: 626
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 24-cv-376-MN
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`JURY TRIAL DEMANDED
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`ALMONDNET, INC., INTENT IQ, LLC, and
`DATONICS LLC,
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`Plaintiffs,
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`LOTAME SOLUTIONS, INC.,
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`v.
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`Defendant.
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`PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE A
`SUR-REPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
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`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`FARNAN LLP
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 777-0300
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
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`Attorneys for Plaintiffs
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`Dated: November 5, 2024
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`Of Counsel:
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`Reza Mirzaie
`Ben Wang
`James Milkey
`Amy Hayden
`James Tsuei
`Daniel Kolko
`Jason Wietholter
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard 12th Floor
`Los Angeles, California 90025
`Tel: 310-826-7474
`rmirzaie@raklaw.com
`bwang@raklaw.com
`jmilkey@raklaw.com
`ahayden@raklaw.com
`jtsuei@raklaw.com
`dkolko@raklaw.com
`jwietholter@raklaw.com
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`Case 1:24-cv-00376-MN Document 29 Filed 11/05/24 Page 2 of 3 PageID #: 627
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`Lotame’s reply (D.I. 25) to its motion to dismiss (D.I. 21) plainly introduced new
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`arguments in support of the Lotame’s requested relief. Lotame’s opposition (D.I. 29) to
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`AlmondNet’s motion for leave to file a sur-reply (D.I. 28) fails to identify these arguments in the
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`motion to dismiss, and incorrectly implies that as long as Lotame’s reply did not seek new
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`requested relief, it could not have presented new argument.
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`Regarding marking, Lotame argues that “Lotame’s arguments regarding past damages are
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`[not] new” because “Lotame has consistently argued AlmondNet’s failure to mark under 35 U.S.C.
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`§ 287 precludes past damages.” (D.I. 28 at 1.) While Lotame’s requested relief (i.e., dismissal of
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`a claim for past damages) remains the same, the arguments and legal theories in support of that
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`requested relief are entirely new.
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`Lotame’s motion to dismiss was based on the fact that “the [asserted] patents include both
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`method and apparatus claims,” and that it was “no matter” that “AlmondNet is only asserting the
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`method claims.” (D.I. 21 at 15 (emphasis added).) In Reply, Lotame changed tack, and argued for
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`the very first time that “In AlmondNet’s original Complaint (D.I. 1), AlmondNet asserted all
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`claims of the Asserted Patents.” (D.I. 25 at 5.) Lotame points to nowhere in the original motion to
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`dismiss that made this allegation. (See generally D.I. 28.)
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`Lotame now asserts that it was an “uncontested fact that AlmondNet . . . originally asserted
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`both the method and apparatus claims.” (D.I. 28 at 2 (emphasis added).) But AlmondNet already
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`debunked this purported “fact” in its proposed sur-reply (D.I. 27-1 at 1). And Lotame’s untimely
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`mistatements (which AlmondNet could not have possibly anticipated in its opposition) are
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`precisely why a sur-reply is justified. Lotame seeks to hide the sur-reply from the Court while
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`seeking dismissal of AlmondNet’s patent claims based on new arguments. This improper and
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`untimely conduct should not be countenanced.
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`1
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`Case 1:24-cv-00376-MN Document 29 Filed 11/05/24 Page 3 of 3 PageID #: 628
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`Regarding the interplay between indirect and direct infringement, Lotame again conflates
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`not requesting new relief with not presenting new argument. See D.I. 28 at 2 (“Lotame’s argument
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`[that] the ’445 Patent should be dismissed in its entirety is not new.”). While Lotame points to
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`consistent requested relief, Lotame does not dispute that the reasoning underlying its requested
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`relief is entirely new. See D.I. 28 at 2-3 (Lotame contending that it was not “required to anticipate”
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`that it might be advantageous to argue that dismissal of indirect infringement allegations would
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`require dismissal of direct infringement allegations, even though Lotame’s original motion to
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`dismiss already argued for the dismissal of indirect infringement allegations).
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`Accordingly, AlmondNet respectfully requests that leave to file its proposed sur-reply be
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`granted, because the “proposed brief responds to new evidence, facts, or arguments raised for the
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`first time in the moving party’s reply brief.” EMC Corp. v. Pure Storage, Inc., 154 F. Supp. 3d 81,
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`Respectfully submitted,
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`FARNAN LLP
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`/s/ Michael J. Farnan
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 777-0300
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
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`Attorneys for Plaintiffs
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`103 (D. Del. 2016).
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`Dated: November 5, 2024
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`Of Counsel:
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`Reza Mirzaie
`Ben Wang
`James Milkey
`Amy Hayden
`James Tsuei
`Daniel Kolko
`Jason Wietholter
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard 12th Floor
`Los Angeles, California 90025
`Tel: 310-826-7474
`rmirzaie@raklaw.com
`bwang@raklaw.com
`jmilkey@raklaw.com
`ahayden@raklaw.com
`jtsuei@raklaw.com
`dkolko@raklaw.com
`jwietholter@raklaw.com
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`2
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